By Ricky Volante, ESQ.
“Amateurism” is a Con.
Earlier this week, thirteen players at the University of North Carolina were suspended for selling shoes they received for participating on UNC’s football team. The same UNC that avoided any penalty from the NCAA for shuffling their players through sham courses — the same UNC academically ranked 30th in the country according to US News. This is the same UNC whose head football coach, Larry Fedora, posited two weeks ago about the lack of a causal link between football and CTE (chronic traumatic encephalopathy), then predicted the fall of football would bring on the fall of the entire country — the same coach that has the audacity to say his players made “poor choices” and are “being held responsible” for those choices. This right here is the con.
The NCAA’s archaic and draconian rules prescribe punishment of players for selling (for approximately $600) shoes that they were unlikely to wear anyway. Meanwhile, these very same rules shielded UNC, the institution, from any punishment for offering sham courses because the courses were available to everyone, not just the athletes they dumped (i.e., forced) into the courses to maintain academic eligibility — all while generating hundreds of millions of dollars in revenue from men’s basketball and football.
What is most interesting about these punishments is that the football players received these shoes under the pretext that they were a form of compensation “incidental to their athletic participation” — in other words, if they were not playing football at UNC, they would not have received them. I use that phrase because it is precisely the same standard invoked in O’Bannon to justify the NCAA’s practice of giving football players gift cards and other “gifts” for playing in bowl games, while continuing to deny that they are compensating the athletes.
Tweaking the circumstances ever so slightly exposes the absurdity of this rule. A full-scholarship student posts their books online to sell them at the end of a semester. Upon selling the books, the student receives money from the buyer. The university does not swoop in and revoke or suspend the student’s scholarship for profiting from their books that they no longer need, yet were paid for by their scholarship — in fact, this is a smart financial decision by the student. So why should a scholarship athlete selling shoes that are superfluous be treated differently than a scholarship student selling books they do not want or need?
Peel another layer off of this onion, and this one might make you uncomfortable — what is the most important difference between the general student population and the athlete-student[1] population at colleges and universities in the United States? Approximately 65% of athlete-students in the revenue-generating sports (men’s basketball and football) are black, while only about 14% of the general student population are black.[2] Of those black athletes, over 50% come from families that qualify for Pell Grants, which are strictly based on financial need.[3]
Let us not forget about Fedora and his comments — about his players and football in general. Disregard the preposterous one involving the downfall of the United States. Instead, look at his comments denying the causal link between playing football and CTE, something the NCAA’s Chief Medical Officer and the NFL’s senior vice president for health and safety have publicly admitted to.[4][5] Fedora is being paid over $2 million for the upcoming season, and will likely be the single most influential person to the 122 athlete-students on UNC’s football team. As Arrington and the more than 100 ongoing concussion cases against the NCAA and various member institutions demonstrate, the NCAA and these schools have no interest in protecting these players the moment their athletic usefulness or athletic eligibility has run out (not to mention the lack of return to play protocols to protect them while they are playing for the school). Fedora’s comments indicate what he actually thinks of his players — they are chattel off of which he can profit. So how can Fedora simultaneously speak about responsibility with regard to his players, yet pass off any form of responsibility or accountability when it comes to protecting his players and actually ensuring they get what they were promised — a college education?
Time for a recap: coaches like Fedora sell athlete-students and their families “the dream” of reaching the professional stage while receiving a “free” education (an unfortunate misnomer — it is not free if there is an exchange of goods or services). The reality is that the athletes are herded into easy majors and classes that allow them to maintain their eligibility while practicing/playing up to 60 hours a week.[6] It is clear that they are not universally getting an education equal to their non-athlete peers. Further, less than 4% of revenue-sport college athletes ultimately play professionally in the NFL or NBA, meaning over 96% of them will not receive that golden ticket to fame and fortune. So what are they left with? A lower quality education that will not put them on even footing with others, chronic pains from playing with no access to affordable health insurance after they leave their university, and no money for their athletic accomplishments, all while NCAA athletics generates over $10 billion in revenue annually. These athlete-students, who are predominantly black, are conned into selling their bodies at the cost of their education, all to financially benefit predominantly white universities ran by predominantly white administrators and coaches. This is the con that “amateurism” truly represents.
The Historical Basketball League (HBL) wants to expose and eliminate the con. The HBL would create a system where the athletes are treated as stakeholders with a voice rather than as chattel, where they can monetize their skills, name, image, and likeness like every non-athlete student on campus. The HBL just wants collegiate athletes to be treated like full citizens in a market economy, to brings things back to the way college sports existed before the NCAA cartel came to power, when college athletes went to school and were paid.[7]
New NCAA Rules
Also this week, the NCAA announced a number of newly-minted rules related to men’s basketball that garnered national interest. Some of these rules were years overdue, but almost each is a false expansion of the athletes’ rights when you merely scratch the surface — remember, this is a con after all. Let us look at the more prominent rule changes…
1. Undrafted players can return to school
Yes and no. In order to qualify to return, the player must have requested an evaluation from the NBA Undergraduate Advisory Committee and received an invite to the NBA Combine. In the 2018 NBA Draft, only 5 players would have been eligible to return under this rule — approximately 60 players who declared for the draft but were not drafted would not have been eligible. More important than the necessary hoops the players will have to jump through is that a school can give away that particular player’s scholarship to someone else while the player is preparing for the draft. Dan Gavitt, the NCAA’s vice president of men’s basketball, admitted that were an eligible player to return and the university did not have a remaining scholarship, the returning player could either remain at that school without a scholarship or transfer and sit for a year per the NCAA’s transfer rules[8] — given the economic background of the majority of these athlete-students, as discussed above, staying without a scholarship will almost never be feasible.
2. Scholarship athletes can have agents
Yes and no. The athlete must receive clearance from the NBA Undergraduate Advisory Committee. If the “one and done” rule is eliminated, then 18-year-olds that are deemed “elite” by USA Basketball (USAB) may also utilize an agent…except that USAB has already stated that they were “blindsided” by this announcement and have neither the expertise nor the capacity to execute this service.[9] In typical NCAA fashion, the whole system has not been fleshed out, as they have yet to determine what agents can and cannot pay for leading up to the draft. For example, it is common practice for athletes to be given loans or have certain training costs covered by the agent, but these “extra benefits” are impermissible according to the NCAA Bylaws.
3. Athletes can have access to a scholarship fund to complete their degree
Yes and no. If you attend your university for two years prior to leaving and you return within ten years of when you left, then you are eligible to apply to the fund to cover educational costs. The issue with that is the athletes that are generating the most revenue for these basketball programs leave after one year, and will therefore be unable to take advantage of the fund.
4. Additional enforcement powers for the NCAA
As if the NCAA did not already have enough unilateral power to punish the players, powers they often exercise, these rule changes will now allow them to bring in outside information for investigative purposes. Information from government agencies, court proceedings, and more can be used by the NCAA in the course of an investigation. For example, testimony given in open court (whether or not it is substantiated) could be used against an athlete to punish them. This could become a very real threat to athletes in the future given how few rights they already have in the context of an NCAA investigation.
Once again, the NCAA’s dog and pony show instigated considerable hoopla, however, this is just another instance where players were disproportionately punished and the NCAA expanded its powers while masquerading as wholesale changes to benefit the athletes. The wheel turns, nothing is ever new. But then again, when you are so successfully running a con of this magnitude to the tune of billions of dollars generated annually by a free labor force, the NCAA does not have much incentive to change things now.
What is happening in college sports does not just affect the players and sports fans — this is a human rights issue. Again, we do not require this for any other profession in the United States, and it is only required here due to the demographics, whether implicitly or explicitly. The NCAA and its member institutions treat these athlete-students like indentured servants. The HBL is going to bring an end to the con and the exploitation of predominantly black athletes. On June 19, 2020, college basketball will be reset, so be sure to tune in.
[1] In an attempt to counter this con, I will not refer to these college players as “student-athletes,” but rather I will refer to them by the more appropriate term: athlete-student.
V[2] As reported by the National Center for Education Services. See https://nces.ed.gov/fastfacts/display.asp?id=98.
[3] Between 40-60% of all Power 5 football and basketball athletes qualify for Pell Grants, and “most Pell grant money goes to students with a total family income below $20,000.” See https://www.scholarships.com/financial-aid/grants/federal-grants/.
[4] See https://www.si.com/college-football/2018/04/26/greg-ploetz-ncaa-cte-concussion-lawsuit.
[5] See https://www.nbcsports.com/bayarea/49ers/first-time-nfl-admits-link-between-football-and-cte.
[6] Universities have begun including “academic progress bonuses” in coaches’ contracts, giving them a financial incentive to continue this practice. See http://gridironnow.com/ncaa-apr-scores-sec-bonuses/.
[7] The HBL will not recreate the wheel, but rather reset college sports to what it was in the early 20th century, as the Carnegie Foundation reported in 1929 — when 81 of the 112 schools surveyed were compensating their athletes. See https://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/.
[8] See https://www.cbssports.com/college-basketball/news/college-basketball-rule-changes-what-will-happen-with-the-ncaas-new-rules-for-recruiting-and-the-nba-draft/.
[9] See http://www.espn.com/nba/story/_/id/24324859/ncaa-new-proposed-rules-blindside-nba-usa-basketball-officials.
Volante is an attorney at Buckley King and the Chief Executive Officer of the Historical Basketball League
